Tuesday, April 5, 2011

The Origins of the Necessary and Proper Clause (New York: Cambridge University Press, 2010), co-authored by Gary Lawson, Geoffrey P. Miller, Robert G. Natelson, and Guy I. Seidman, is taken up in a recent issue of the Law & Politics Book Review.

The Necessary and Proper Clause is one of the most important parts of the US Constitution. Today this short thirty-nine word paragraph is cited as the legal foundation for much of the modern federal government. Yet constitutional scholars have pronounced its origins and original meaning a mystery. Through three independent lines of research, the authors trace the lineage of the Necessary and Proper Clause to the everyday law of the Founding Era - the same law that American founders such as Madison, Hamilton, and Washington applied in their daily lives. Origins of the Necessary and Proper Clause are found in law-governing agencies, public administration, and corporations. Moreover, all of those areas were undergirded by common principles of fiduciary responsibility - reflecting the Founders' view that a public office is truly a public trust. This explains the choice of language in the clause and provides clues about its meaning. This book thus serves as a reference source for scholars seeking to understand the intellectual foundations of one of the Constitution's most important clauses.

And here's a glimpse of the review, by George Thomas (Department of Government, Claremont McKenna College):

This is a curious book and, yet, a successful book. While the chapters that make up the book are written by different authors or sets of authors, and identified as such, the introduction makes a plea that this work be treated as a book and not an edited collection of essays. This plea gave me pause, but the three lines of research that began independently of one another do more or less come together to form a book. And the claim of Gary Lawson, Geoffrey P. Miller, Robert C. Natelson, and Guy I. Seidman is that the principle of fiduciary responsibility found in administrative law, the private law of agency, and corporate law can help us make sense of the “necessary and proper clause.”

As it happens, this is also a timely book. The necessary and proper clause has once again become central to debates about Congressional power – particularly with regard to health care reform. Indeed, if it was thought that Congress could easily reach health care under a broad reading of its power to regulate interstate commerce, scholars have show that many of the most expansive readings of Congress’s power under the commerce clause, such as WICKARD v. FILBURN and GONZALES v. RAICH, are in fact best understood as rooted in the necessary and proper clause. Just how this clause ought to be understood, then, has become a pressing constitutional question.